People often misunderstand the meaning and purpose of bail in the context of criminal proceedings.

Criminal defendants frequently come out of a bail hearing feeling like they’ve already been found guilty of the current allegations, when that is not the case at all.

When a person is suspected of committing a criminal offense, they frequently are arrested and taken to jail. In order to be released from jail, they will be required to post bail.

Bail, or a bail bond, is a promise by the defendant that, if he is released, he will appear at all future court proceedings and abide by all conditions of release. All bail bonds come with a dollar amount, and if the defendant fails appear in court or to abide by the conditions of their release, they may be required to pay or forfeit to the court the dollar amount stated in the bail bond.

The purposes of bail are to ensure the defendant will return to court if released, that the public is not at risk if the defendant is released, and that the defendant is not unnecessarily detained while the matter is pending.

Ensuring the defendant returns to court is arguably the primary reason for requiring bail.

When considering the type and amount of bail, the court considers several factors outlined in the Tribal Code. These the circumstances surrounding the alleged offense, the person’s ties to the community, their past criminal history, and their record of appearing, or failing to appear, in prior court proceedings.

People frequently don’t understand why their prior criminal history, including their history of appearing or not appearing, is discussed at a bail hearing. The reason is simple: Prior criminal history, and prior history of appearing or failing to appear, are specifically mentioned in the Tribal Code as factors the court is to consider when setting bail.

This only makes sense. A person with no criminal history is going to have a lower bail (and thus have to give the court less money in order to be released) than someone with a lengthy criminal history. A person who has a history of failing to appear is going to have a higher bail simply to ensure the person returns to court.

At the bail hearing, therefore, both the prosecutor and the defense will bring factors to the court’s attention. It’s up to the court to consider all factors when it sets the type and amount of bail.

Setting bail is difficult because of the competing interests involved. On one hand, the court must set bail in an amount that will ensure the defendant returns and abides by the conditions of their release. On the other hand, the court must remember that the defendant is presumed to be innocent and therefore should not be unnecessarily incarcerated.

People must understand that the setting of bail by the court is not a finding of guilt in the present case, even though findings of guilt in prior cases are relevant to the bail determination. It’s simply a response to competing interests: ensuring the community is protected and the defendant returns to court, balanced against the interest in ensuring the accused is not unnecessarily incarcerated.